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8652_FORM A - 223, 223 AND 241 MEADOW ST..pdf7~S-d- fOrm A - aa3, a3j ~ d L-\ \ ~(QQcicvJ 0t, Jate. 21161:.1011 To the Department Officer making the Payment: Received of D.L. Bean, Inc. as Listed Above the swn of 110.00 ---';D:::o"-lIa=rs::--- for the Form A Filing Fee ending 2/16/2011 for collectic raY lTreasurer -----------161.57' ----16.50' -- -- LAND OF ruCKAHOE TURF FARMS, INC. ----- N 59'16'51' E 111.45' -- ------GS~ ----..- LEGEND • IRON PIPE FOUND • CONCRETE BOUND FOUND GRANITE STONE BOUND FOUND - ---- LAND N/F SCOTT N. MACKENZIE -....- EXISTIN~ GARAGE ~ I z -- N 30'43'09" W 16.50' -- LOT 1 31,905.7 SQ. FT. 110.00' S 68"32'26" W w =V .. !">~ ~ ~ ~ '" N If) MEADOW o IRON PIPE TO BE SET APPROV AL UNDER S~BDIVISION 1------------, CONTROL LAW NOT REQUIRED PLANNING BOARD-TQWN OF ~A~.AW~M. ~~~TTS CHAIRMAN. THt.5 PU9l.""""~J &Ae2> HItS ~ UP 't;t::"..e""" .. ,.2ADOA..> AS , '70 co ...... f? &..-1 ,,)#.. 'Ir= t=. I.-U 1TH "Z. o...J "'-' ~ .e6 <J Vle.-e:.. M6.L1J.s LOT 2 37,797.4 SQ. FT. w 110.00' S 68'32'26" W ------- KIRKlAND STREET ( DISCONTINUED COUNTY HIGHWAY MAYBE SUBJECT 10 RIGHlS BY OIHERS SEE COUNlY COl.tLtISSIONERS RECORDS 81<. 22 PAGE 152) -------- --- -----------S 30'43'09" E --16.50' -------- ---- 2 1/2~--++-/ STORY W/F HOUSEN 241 -------- BRICK SHED GLASS GREEN HOUSE LOT 3 86,666.4 SQ. FT. 1.99 ACRES 2 1/2 -\-\,./--STORY W/F HOUSEN 245 218.23' S 68'32'26" W 220.00' STREET S 68'32'26" W MEADOW STREET THIS SURVEY & PLAN WERE PREPARED IN ACCORDANCE WITH THE PROCEDURAL & TECHNICAL STANDARDS FOR THE PRACTICE OF LAND SURVEYI.~2rJN THE \ COMMOry: M I CERTIFY THAT I HAVE CONFORMED WITH THE RULES & REGULATIONS OF THE REGISTE.~,Y DEEDS IN PREPAR7, IS PLA . If) J LAND OF MARK C. MODZELESKI (BLOW UP N.T.S.) w , o PARCEL A 4.4 SQ. FT. '" to' LAND OF If) ~ MARK C. C? ':l; MODZELESKI LOT 3 ~ 0: 218.23' ~r' • 1. 77' .---178 ± S 68'32'26" W MEADOW STREET PARlCEl "A" IS LAND OF MARK C. MODZElESKI TO BE CONVEYED TO AND COMBINED PARCElL A WfIH LAND OF JOSEPH D. and DONNA 1.4, VALENTI (L0T3) TO FORM ONE CONTIGUOUS LOT. / CSEE BILOW UP) 178' ± FRONTAGE REMAINING SCALE IN FEET 0' 40' 80' 120' . ~ .... ~"'I _iiiiiiIiiiiI ZONED: RIESIDENCE A-2 FOR: (OWNER) JOSEPH D. VALENTI and DONNA M. VALENTI 1138 MAIN STREET AGAWAM, MA. SCALE: 1" 40' CHECKED: . 2-28-2011 CAD. NO T.J.A. • EAN,-INC. SURVEYORS & 40 STRt:ET WESTFIELD, MASSACHUSETTS ENGINEERS 308~ Town of Agawam 36 Main Street Agawam, Massachusetts 01001-1837 September 7, 2011 Joseph & Donna Valenti 1138 Main Street Agawam, MA 01001 Dear Mr. & Mrs. Valenti: Tel. 413-786-0400 Fax 413-786-9927 At its duly called meeting held on September I, 20 II, the Agawam Planning Board voted to approve your plans under "Subdivision Control Law Not Required" for a parcel of land located on Meadow Street. Plans drawn by D.L. Bean, Inc. and dated 2-10-2011, rev: 2-28-2011. The Board's approval is conditional upon the following note being placed on the plan: "The Planning Board has made no determination as to compliance with zoning requirements." ~ Sincerely, -•• Please be advised that failure to record the plan within six (6) months and provide proof of recording will negate the action of the Board. Detach on dotted line and return to the Agawam Planning Board, 36 Main Street, Agawam, MA 011001. To Agawam Planning Board Please be advised that the Form A plan that was filed by Valenti and approved by the Agawam Planning Board for a parcel of land lo~at~ on Meadow ~treet has been recorded at the Hampden County Registry of Deeds. Book 31 a ' Page I Lj . t Signature of Applicant ______________ _ 08-03-'1110:28 FROM-D.L. Bean 14135622091 T-361 P0002/0002 F-153 D. L. BEAN, INC. LAND CONSULTANTS \~\ Forty School Street Westfield, Mass. 01085 Agawam Planning Board 36 Main Street Agawam, MA 01001 ') ( • 413-562-7566 Fax # 413-562-2091 August 3,2011 RE: Form "An Plan -Meadow Street-Agawam Dear Board Members: SURVEYORS ENGINEERS On behalf of my client Joseph Valenti, I am requesting aeontinuance to act on the plan until August 18'h, 201 L MareE. MESIssc Town of Agawam 36 Main Street Agawam, Massachusetts 01001-1837 Tel. 413-786-0400 Fax 413-786-9927 MEMO TO: Nick Urbinati, Building Inspector FROM: Planning Board "9.,9 SUBJECT: Form A -Meadow Street -Valenti DATE: July 26, 2011 Please review and comment on the attached Form A for Valenti on Meadow Street prior to the Board's August 4th meeting. Thank you. DSD:prk Town of Agawam 36 Main Street Agawam, Massachusetts 01001-1837 Tel. 413-786-0400 Fax 413-786-9927 MEMO TO: Nick Urbinati, Building Inspector FROM: Planning Board SUBJECT: Fonn A -Meadow Street -Valenti DATE: February 16,2011 Please review and comment on the attached Fonn A for Valenti on Meadow Street prior to the Board's March 3ni meeting. Thank you. DSD:prk A G A W A M P LAN N I N G BOA R 36 Main Street Agawam, Massachusetts 01001 Tel. 413-786-0400 Ext. 245 FORM A A lication for Endorsement of Plan Believed Not to Re D ---"'" g; -Cf\ ~ --., 'P C" ?E ~~ ~n lIE::;; 'P"" ~~ ~u; 'Po ..., ..., roval FILE ONE COMPLETED FORM WITH THE PLANNING BOARD AND ONE COpy WITH THE TOWN CLERK IN ACCORDANCE WITH THE REQUIREMENTS OF SECTION 11-B Date, February 11, 2011 TO THE PLANNING BOARD: The undersigned, believing that the accompanying plan of his property in the Town of Agawam does not constitute a subdivision within.the meaning of the Subdivision Control Law, herewith submits said plan for a determination and endorsement that Planning Board approval under the Subdivision Control Law is not required. 1. NAME OF APPLICANT ____ ~J~o~s~e~p~h_D~.~V~a~l~e~n~t~i~ ____________________________ __ Address ____ ~11~3~8~M~a~i~n~S~tr~e~e~t~-~A~g~a~w~am~ ____________________________ __ 2. NAME OF SURVEYOR Marc E. Shute -D.L. Bean, Inc. Address 40 School Street -Westfield. MA 01085 3. DEED OF PROPERTY RECORDED IN ____ H~a~millP~d~e~n~C~o~ugn~ty~ ____________________ __ Book ____ ~1~6~9~2~8 ____________ ___ Page __________ ~2~4~1 ________ _ 4. LOCATION OF PROPERTY: Property is located on the northerly sideline of Meadow Street opposite Wildflower Lane. 5. DESCRIBE THE PROPOSAL IN THIS SUBMISSION, Plan shows creation of three lots located in a-residence A-2 zone. ATTACHMENTS -TWO ORIGINALS AND THREE COPIES OF PLAN BY CERTIFIED LAND SURVEYOR. THE PLANS WILL BE DISTRIBUTED AS FOLLOWS, 1 ORIGINAL TO THE TOWN OF AGAWAM ENGINEERING DEPARTMENT, ONE ORIGINAL TO BE RECORDED AT REGISTRY OF DEEDS BY THE APPLICANT, ONE COPY FOR THE ASSESSORS OFFICE, ONE COpy FOR THE PLANNING BOARD OFFICE, AND ONE CERTIFIED COPY FOR THE BUILDING DEPARTMENT. Signature of Owner -(~~~~~~~~~~~~ ___ >~;t1~~~~ ____________________ __ 03-03-'11 09:45 FROM-D,L, Bean 14135622091 T-236 P0001/0001 F-730 ~,. ..................... , ..... , .. -. \DE?\ ( • _, ............. _ •• ___ ..... 'W._ Forty School Street Westfield. Mass. 01085 413-562-7566 Fax # 413-562-2091 SURVEYORS ENGINEERS TELBCOPY COVER SHEET TO: TELECOPY NUMBER: (_) J ~"'-~0)2.. J DATE: ') ~ ~. Col, TIME: \a.{)Q 8PM EST FROM: TOTAL NO. ~ PAGES; J.. (including=-=C=ov::7.e=rC'-s::'ih=-=eet) RE: '\)\~n\,...., ~e~ -M~ ~~ f"'lJYL '"Ji)~~l REMARKS: , -. " -t \Nb\) \..0 l..\ l;.t:;. Xc.. wfTh ~ :m~ el'¥' It {We4~, b~ ~ Pwv F4"2:-!""'l? kBo\le; ~\\Ji . -:L M\\...J~"" R~~\"\tTi\'''L--r\l.i~ wAA ..... n~ ~ltiq , . ~t1:¥:w W~ ~ N4YIJUrI~\ ... ~ e~'L ~1Q.I,",'" l:;~ ~Tll,p... -bu "!. M p(:) 2\t:\.Jf ~'6-'! IF YOU DO NOT RECEIVE ALL OF THE PAGES. PLEASE. CALL:....-_-fr'::..cfo.-=~=-...:=. __ AT (413) 562-7566 AS SOON. AS POSSIBLE. THE FOLLOWING IS FOR YOUR INFORMA,\,ION IN TRANSMITTING TO US: FAX NO. (413) 562-2091 MODEL TOSHIBA TF-211 • • Town of Agawam 36 Main Street Agawam, Massachusetts 01001-1837 March 4, 2011 Joseph Valenti 1138 Main Street Agawam, MA 01001 Dear Mr. Valenti: Tel. 413-786-0400 Fax 413-786-9927 :1>- At its duly called meeting held on March 3, 2011, the Agawam Planning Board voted to ~ept L iE your withdrawal of the Approval Not Required (ANR) plan for Meadow Street. ;x >>>' ~ c):x I );PC") If you have any questions, please contact this office at 786-0400, extension 283. Sincerely, Travis P. Ward, Chairman AGAWAM PLANNING BOARD TPW/DSD:prk cc: Building Inspector Town Clerk D.L. Bean, Inc. File ~ ::e:r->'" ~ ~~ :It :Xu; ~ >0 ." ...., ~ A G A W A M P LAN N 1 N G BOA R D 36 Main Street Agawam, Massacnusetts 01001 Tel. 413-786-0400 Ext. 245 FORM A Application for Endorsement of Plan Believed Not to Require Approval FILE ONE COMPLETED FORM WITH THE PLANNING BOARD AND ONE COpy WITH THE TOWN CLERK IN ACCORDANCE WITH THE REQUIREMENTS OF SECTION 11-B Date: July 26,2011 TO THE PLANNING BOARD: The undersigned, believing that the accompanying plan of his property in the Town of Agawam does not constitute a subdivision within.the meaning of the Subdivision Control Law, herewith submits said plan for a determination and endorsement that Planning Board approval under the Subdivision Control Law is not required. 2. 3. Address 40 School Street, Westfield -.... DEED OF PROPERTY 7808 RECORDED IN ___________________ o<c,-__ ~_~~·~,r-~~~~~'----- 2 5 9 ---.:;:t BOOk __ ~1~6~9~2~8 ________________ __ ~ Page ___ 2~4~1~ __ ~(~ ________ __ 4. LOCATION OF PROPERTY: Property is located on the Northerly sideline of Meadow Street opposite Wildflower Lane. 5. DESCRIBE THE PROPOSAL IN THIS SUBMISSION: Plan shows creation of three lot I s and parcel "A" to be added to lot 113. ATTACHMENTS -TWO ORIGINALS AND THREE COPIES OF PLAN BY CERTIFIED LAND SURVEYOR. THE PLANS WILL BE DISTRIBUTED AS FOLLOWS: 1 ORIGINAL TO THE TOWN OF AGAWAM ENGINEERING DEPARTMENT, ONE ORIGINAL TO BE RECORDED AT REGISTRY OF DEEDS BY THE APPLICANT, ONE COPY FOR THE ASSESSORS OFFICE, ONE COPY FOR THE PLANNING BOARD OFFICE, AND ONE CERTIFIED COPY FOR THE BUILDING DEPARTMENT. Signature of Owner 0~ VoJ..w4:;; -r ,MAA ,~~Ot4.l flF'=:~ Address I )3~ t\?r!~ '0T~1' <6:') Mln-OoN S~ -A4~ • EXECUTIVE OFFICE OF COMMUNITIES & DEVELOPMENT CREATING SUBSTANDARD LOTS Vol. I, Edition No. 9 September, 1984 l Either as a Building Inspector, or as a member of a Planning Board or Zoning Board of Apoeals. you have Jrobably been asked by a local property owner as to what he or she must do to create a buildina lot which will not meet the minimum frontage requirement of the loc~1 zoning bylaw. Relative to this issue, we have received many inquiries from .. ~ --'. eo, I offi ," I, ,",h '" [~ [Q) 1. Can a Zonina Board of ,~ppeals grant a dimensional variance creating a substandard lot? 2. Should a Planning Board approve a aian of land showing a proposed lot with insufficlent frontage? In creatinq a substandard lot, should the applicant first obtain approval from the Planning Board or Zoning Board of Appeals? Fortunately, the Massachusetts Appeals Court has answered all of these questions and more when it decided Arrigo v. Planning Board of Frankl in, Mass. App. Ct. Adv. Sh. 2101 (1981). In Arrigo, the Court dealt with the creation of a building lot which did not meet the minimum lot frontage requirement of a local zoning bylaw. ARRIGO V. PLANNING BOARD OF FRANKLIN Mass. App. Ct. Adv. Sh. 2101 (1981) QJJ Raymond Mercer and his ,,,ife (ti,,, "lercers) wished to create a sub- standard building lot. They owned a parcel of land in the town of . Franklin which was located in a rural-residential zone. The minimum lot frontage requirement for that zone was 200 feet, and the minimum lot area was 40.000' square feet. ~ In September of 1976, the Mercers petitioned the Zoning Board of Appeals for a variance. They presented the Board with a plan showing . two 'lots, one with 5.3 acres and 200 feet of frontage, and the other lot with a 4.7 acres and 186.71 feet of frontage. The Board of Appeals ~ "'"t'~"~'[~~ tl~t~j~ 11111 Call1hridge Slrt'l;1 B,),lul1, ~1a.\S:IChl"€ll\ 1122112 r frontage. The Arrigo's,neighboring property owners,appealed the deci- sion of the Board to the Superior Court. [n, F ebrua ry of 1 977, the Mercers app 1 i ed to the P 1 anni ng Board for approval of a plan showing the t\~O lot subdivision. The Planning Board approved the subdivision plan even though one of the lots shown on the plan did not have the sufficient frontage as required by the Zoning By- law. The Arrigos also appealed tne Planning Board's decision to the Superior Court. The judge in Superior Court reversed the decisions of the Planning Board and Zoning Board of Appeals, and the Mercers dPpealed both reversals to the Massachusetts Appeals Court. 1. THE BOARD OFA,PPEALS CASE In granting the dimensional 'Iariance for the substandard lot, the Board of Aopeals failed to make the necessary finding that the substantial hardship be based upon the soil. shape or topography of the land. The Massachusetts ~.ppeals Court found that the Superior Court judge was correct in over- turning the decision of the Board of Appeals in that the granting of the variance by the Board was in excess of its- authority. There is no basis for the Mercers' contention that the judge erred when he reversed the decision of the board of appeals granting a variance. The judge found that there were no conditions especially affecting the land in question .... and that any hardshio was purely financial and was the Mercers' own making. The applicable principles are. illustrated by Warren v. Board of Appeals of Amherst, Mass. Adv-:-~ (1981) 522, 530-534 ..... The Mercers urge that the deviation from the required frontage, 6.68 percent, was demir.:~is, but the frontage deviation in the Warren case was only two per- cent and the variance granted by the board was nevertheless annulled. As all the conditions fa r a va ri ance s·et out in G. L. C. 40A, § 10, were not met, the judge correctly annulled the decision of the board of appeals. 2. 2. THE PLANNING BOARD CASE The Planning Board approved the two lot subdivision plan and waived the 200 foot frontage requirement for the substandard lot pursuant to the Subdivision Control Law. Chapter 41, Section 81R, MGL authorizes a Planning Board to waive the minimum frontage requirement of the Subdivision Control Law provided the Planning Board determines that such waiver is in the public interest and not inconsistent with the intent and purpose of the Subdivision Control Law. The minimum frontage requirement of the Subaivision Control Law is found in Chapter 41, Section Bll. MGL which states that the lot frontage is the same as is specified in the local zoning bylaw, or 20 feet in those cases where the local zoning bylaw does not specify a minimum lot frontage. The Superior Court judge annulled the decision of the Plan- ning Board waiving the frontage requirement as he concluded that the Planning Board waiver was not in the Dublic interest and was contrary to the intent and purpose of the Subdivision Control Law. The Massachusetts Appeals Court reviewed the purposes of the Subdivision Control Law, and held that the Planning Board waiver was consistent with the purposes of the Subdivision Control Law, and that its decision to approve the two lot subdivision pian was not in excess of its authority . ... the primary significance of frontage for pur- poses of the Subdivision Control Law is to ensure access to vehicular traffic and the availability of utilities and municipal services to lots in the subdivision Concern under the Subdivision Control Law arises from frontaoes tpo narrow to permit easy access or from frontage connected to the lots they serve by necks too narrow or wind- ing to permit easy access. The two lots shown on the Mercers' subdivision plan have long frontages on an established public way. Both lots a re rough 1 y recta ns~! 1 a r, and no potent i a 1 problems concerning access or the provision of muni- Cipal services or utilities have been suggested. In these circumstances we do not think it can be said that the planning board exceeded its authority in concluding that the fourteen foot frontage devi- ation would not be inconsistent with the intent and purpose of the Subdivision Control Law. 3. ZONING V. SUBDIVISION CONTROL In deciding this case, the Massachusetts Appeals Court had the opportunity to comment on the fact that the Planning Board and Zoning Board of Appeals are faced with different statutory responsibilities when considering the question of creating a substandard lot. Although Chapter 41, Section81R gives the Planning Board the authority to waive the frontage requirement for the purposes of the Subdivision Control Law, the court 3. stressed that the authority of the Planning Board to waive frontage requirements pursuant to Section 8lR should not be construed as authorizing the Planning Board to grant zoning variances. The court noted that there is indeed a significance between the granting Qf a variance for the purposes of the Zoning Act an approval of a subdivision plan pursuant to the Subdivision Control Law. On this point, the court summarized the necessary approvals in order to create a building lot Jacking adequate frontage. SUMMARY: In short, then, persons in the position of the Mercers, seeking to make two building lots from a parcel lacking'adequate frontage, are required to obtain two independent approvals: one from the planning board, which may in its discretion waive the frontage requirement under the criteria for waiver set out in G.L. c.41, § SIR, and one from the board of appeals, which may vary the frontage requirement only under the highly restrictive criteria of G.L. c. 40A, § 10. The approvals serve different purposes, one to give marketability to the lots through recordation, the other to enable the lots to be build uoon. The action of neither board should, in our view, bind the other, par- ticularly as their actions are based on differ- ent statutory criteria. "j" 1. An owner of land wishing to create a substandard building lot which will have less than the required lot of frontage needs to obtain approval from both the Zoning Board of Appeals and the Planning Board. A zoning variance from the Board of Appeals varying the lot f~ontage requirement is necessary in order that the lot may be built upon for zoning purposes. It is also necessary that the lot owner obtain a frontage waiver from the Planning Board pursuant to Chapter 41, Sec- tions 81L, 8lR, and 81Y, MGL so that the lot is buildable for the purposes of the Subdivision Control Law. 2. The variance by the Zoning Board of Appeals and the waiver by the Planning Board are two separate and distinct approvals with different purposes, but both are necessary before a building permit can be issued by the building official. 80th approvals require a public hearing as prescribed by the dpplicable statutes. 4. 3. 4. 5. ,-," ,-" I, , This case points out the fact that it is extremely difficult for the Board of Appeals to grant a variance for the creation of a substandard building lot. The Board must find that a substantial hardship exists solely as a result of the soil, shape or topography of the land. It is the applicant's choice as to which board to petition first when seeking to create a substandard lot. However, since it is difficult to show that all the necessary criteria exists before a variance can be granted by the Board of Appeals, we would suggest that an applicant attempt to obtain a variance be- fore seeking a waiver from the Planning Board. The court noted that the Mercers' plan was not entitled to approval by the Planning Board as a matter of law because the plan did not comply with the frontage requirement of the Subdivision Control Law. Since the proposed division of land constituted a subdivision, a definitive plan was submitted in order for the Planning Board to waive front- age requirements for the purposes of the Subdivision Con- trol Law. The Planning Board must determine whether a frontage waiver is in the public interest and not incon- sistent with the Subdivision Control Law. The endorse- ment of such waiver i)lust either be shown on the plan or on a separate instrument attached to the plan with refer-- ence to such instrument shown on the plan. A waiver should not be accomplished by an applicant submitting an approval not required plan (81P plan) as the proposed division constitutes a subdivision which requires a public hearing. It is important to note that the Ar,igo case dealt solely with the creation of a substandard at which did not. meet the minimum frontage requirement of the local zoning bylaw. As for minimum lot area, the lot in question complied with the provisions of the zoning bylaw. In next month's issue of the Land Use Manager, we will look at the issue of zoning compliance as it relates to the Planning Board's review of an approval not required plan. 5. ExECUTIVE OFFICE OF COMMUNITIES & DEVEWPMENT ~ MichOiCI:;;; lIubkio ... (;O\l"mHr \~v:. .vny s Arithom. 5ecl"('ta~ Vol. 1, Edition No. 10 October, 1984 ENDORSING 81P PLANS SHOWING ZONING VIOLATIONS Last month's edition of the Land Use Manager dealt with the creation of a building lot which did not meet the minimum frontage requirement of the 1 Dca 1 zoni ng byl aw. However, frequently pl anni ng Boards are presented' with a plan to be endorsed "approval under the Subdivision Control Law not required" where the plan shows a division of land into proposed lots in which: a. all the proposed lots have the required zoning frontage either on public ways, previously approved ways or existing ways that are adequate in the board's opinion but; b. one or more of the proposed lots lack the required minimum lot area or the plan indicates other zoning deficiencies. Since the plan shows zoning violantions, can the Planning Board refuse to endorse the plan "approval not required" as requested by the applicant? What can a Planning Board do to prevent future misunderstandings as to the buildability of the proposed substandard lots if they are required to endorse the plan? As to the Planning Board's endorsement, the an!swer is clear. The only pertinent zoning dimension for determining whether a plan depicts a subdivision is frontage. In Smalley v. Planning Board of Harwich, 10 Mass. App. Ct. 599 (1980), the Harwich Planning Board was presented with a plan showing a division of a tract of land into two lots, both of whiich had frontage on a public way greater than the minimum frontage required by the zoning bylaw. The Planning Board refused endorsement since the plan indicated certain violations as to the minimum lot area and sideline requirements of the zoning bylaw. However, the Massachusetts Appeals Court decided that the plan was entitled to the Planning Board's endorse- ment. 100 Camhndge Street Boston. Massachusetl.l 02202 SMALLEY V. PLANNING BOARD OF HARWICH 10 Mass. App. ct. 599 (1980) • Anne Smalley submitted a plan to the Planning Board for endorsement that "approval under the Subdivision Control law was not required." The plan showed a division of a tract of land into two lots on which there were two existing buildings, a residence and a barn. The barn and the residence were standing when the Subdivision Control Law went into effect in Harwich. One lot had an area of 14,897 square feet and included the existing residence. The other lot had an area of 20,028 square feet and included the existing barn. Both lots shown on the plan met the minimum 100 foot frontage requirement of the zoning bylaw. The zoning bylaw required a minimum lot area of 20;000 square feet so that the smaller lot containing the residence did not conform to the minimum lot area requirement. The plan also indicated violations as to the minimum sideline requirements of the zoning bylaw. The Planning Board refused to endorse the plan and Smalley appealed to the Superior Court. The judge in Superi or Court annull ed the Pl anni ng Board's deci- sion to refuse endorsement and the Planning Board appealed to the Massachusetts Appeals Court. The Planning Board contended that the zoning violations shown on the plan justified its decision not to endorse the plan "approval not required." The Planning Board argued that Chapter 41, Section 81M, MGl (which states the general purposes of the Subdivision Control Law) requires that the powers of the Planning Board under the Subdivision' Control Law "shall be exercised with due regard ... for insuring com- pliance with the applicable zoning ordinances or by-laws •..• " After reviewing the legislative history of the "approval not required plan," the court decided against the Planning Board. In view of the legislative history and judicial inter- pretation of § B1P, we do not read that section to place the same duties and responsibilities on the board as it has when it is called upon to approve a sub- division ..... Provision for an endorsement that approval was not required first appeared in 1953, when § 81P was enacted. Theretofore plans not requiring approval by a planning board could be lawfully recorded without reference to the planning board. The purpose of § 81P, as explained by Mr. Philip Nichols on behalf of the sponsors of the 1953 legislation, was to all eviate the "diffi culty ... encountered by registers of deeds in deciding whether a plan showing ways and lots could lawfully be recorded." This purpose is manifes ted in the insert i on by St. 1953, c. 674, § 7, of G.l. c. 41, S 81X, which provided --as it now pro- vides --that; "No register of deeds shall record any plan showing a division of a tract of land into two or more lots, and ways, ... unless (1) such plan bears an endorsement of the planning board of such city or town that such plan has been approved by such planning board, -2- or (2) such plan bears an endorsement ... as provided in [~ 8lP,]." .... Thus, § 81P was not intended to enlarge the substantive powers of the board but rather to provide a simple method to inform the register that the board was not concerned with the plan --to "relieve certain divi- sions of land of regulation and approval by.a planning board (' approva 1 ... not requ ired') ... because the vital access is reasonably guaranteed .... " .... Fur- ther, were we to accept the defendant's contention that a planning board has a responsibility with refer- ence to zoning when making a I 81P endorsement, it would imply a similar responsibility with reference to other considerations in § 81M ... , not only "for insur- ing compl iance with the appl icabl e zoning [laws]" but "for securing adequate provision for water, sewerage. drainage, underground utility services," etc. A ~ 81P endorsement is obviously not a declaration that these matters are in any way satisfactory to the planning board. In acting under § 81P, a planning board's judgment is confined to determining whether a plan shows a subdivision. Nor can we say that the recording of a plan showing a zoning violation, as this one does, can serve no legitimate purpose. The recording of a plan such as the plaintiff's may be preliminary to an attempt to obtain a variance, or to buy abutting land which would bring the lot into compliance, or even to sell the non- conforming lot to an abutter and in that way bring it into compliance. In any event, nothing that we say here in any way precludes the enforcement of the zoning by-law should the recording of her plan eventu- ate in a violation. We therefore affirm the judgment. In this connection we note that the lower court has retained jurisdiction though so far as appears nothing remains to be done but to place a § 81P endorsement on the plan in accord- ance with the judgment. SUMMARY: The court has interpreted the Subdivision Control Law to impose two standards that must be met in order for lots shown on a plan to be entitled to an endorsement by the Planning Board that "approval under the Subdivision Control Law is not required." -3- • 1. The lots shown on such plan must front on one of the three types of ways specified in Chapter 41, Section 81 L, MGL, and; 2. A Planning Board's determination that adequate access to such lots as comtemplated by Chapter 41, Section 81M, MGL, otherwise exists. Therefore, a plan showing proposed lots with sufficient frontage and access, but showing some other zoning violation, is entitled to an endorsement that "approval under the Subdivision Control Law is not required." If the necessary variances have not been granted by the Board of Appeals, what can a planning board do to make it clear that some of the proposed lots may not be available as building lots? A prospective purchaser of a lot may assume that the planning board's endorsement is an approval on zoning matters even though such endorse- ment gives the lots shown on the plan no standing under the applicable zoning bylaw. Chapter 41, Section 81 P, MGL, provides that "The endorsement under this section may include a statement of the reason approval is not required." If an applicant is unwilling to note on the plan those lots which are in noncompliance with the zoning ~bylaw, or are other- wise not available as building lots, we would suggest that the Plan- ning Board may properly add on the plan under its endorsement an explanation to the effect that the Planning Board has made no deter- mination as to zoning compliance. Since a Planning Board has no jurisdiction to pass on zoning matters, we would suggest that plan- ning Soards consider the following type of statement: 1. "The above endorsement is not a determination as to conformance with zoning regulations." 2. No determination as to compliance with zoning require- ments has been made or intended. 3. "Planning Board endorsement under the Subdivision Control Law should not be construed as either an endorsement or an approval of Zoning Lot Area Requirements." Hopefully, one of the above statements would have the effect of leading a purchaser to seek further advice. Of course, the building inspector should also be alerted. -4- AUTHOR'S NOTE: We have received a few inquiries relative to our Land Use Manager dealing with the immunity of State Government from municipal zoning regulations. (See Vol. 1, Edition No. 7). Some of our readers have asked whether a local Housing Authority must comply with zoning require- ments. The answer is Yes. As noted in our Land Use Manager, an entity or agency created by the Legislature is exempt when that entity or agency is performing an essential governmental function unless there are statutory provisions requiring compliance with local zoning regulations. Chapter 121B, Sec- tion 28, MGL provides that "every project of a housing authority shall be subject to all laws and all ... by-laws and regulations of the town in which it lies, relating to ... zoning .... " If you are interested in a court case concerning this issue, see Russell v. Zoning Board of Appeals of Brookline, 349 Mass. 532 (1965). Donald J. Schmidt NOTICE TO ALL BOARDS OF APPEALS AND SPECIAL PERMIT GRANTING AUTHORITIES: Boards of Appeals and Special Permit Granting Authorities must follow the requirements as set forth in Chapter 40A, Section 11, MGL, when holding a public hearing. Section 11 specifically states that "no such hearing shall be held on any day on which a state or municipal election, caucus or primary is held in such city or town." Hopefully, your board did not conduct a publ ic hearing during last month's primary. Remember that the 6th of November is election day and not to schedule a public hearing on that date. AN ACT RELATIVE TO THE UNEXPIRED TERMS OF CERTAIN ELECTED MUNICIPAL PLANNING BOARD MEMBERS: Chapter 57 of the Acts of 1984 amends Chapter 41, Section 81A, MGL relative to the procedure to be followed when filling a vacancy on a Planning Board which occurs otherwise than by the expiration of the term. The law provides that if members of a Planning Board are elected, any unexpired term shall be filled by appointment by the Board of Select- men and the remainder of the members of the Planning Board until the next annual election, at which time, such office shall be filled, by election, for the remainder of the unexpired term. All such appoint- ments shall be made in the manner as provided in Chapter 41, Section 11, MGL. This law was approved on June 12, 1984 and took effect on September 10, 1984. -5- D. L. BEAN, INC. LAND CONSULTANTS Forty School Street Westfield, Mass. 01085 Agawam Planning Board 36 Main Street Agawam, MA 01001. 413-562-7566 Fax # 413-562-2091 August 19,2011 RE: Fonn "A" Plan -Meadow Street, Agawam Dear Bard Members: SURVEYORS ENGINEERS On behalf of my client Joseph Valenti, I am requesting an extension of time to act on the above plan until the next Planning Board Meeting on September 1 st, 2011. MES/ssc